Chapter 21.12
NONCONFORMING USES
AND STRUCTURES

Sections:

21.12.100    Purpose.

21.12.200    Nonconforming uses.

21.12.300    Use of nonconforming lots.

21.12.400    Nonconforming structures and/or sites occupied by a conforming use.

21.12.500    Nonconformance created by government action.

21.12.550    Restoration and repairs of nonconforming structures or structures occupied by nonconforming uses.

21.12.900    Construction approved prior to title.

21.12.100 Purpose.

The purpose of the zones established in the zoning code is to guide the future use of land by encouraging the development of desirable residential, commercial, and industrial areas with appropriate arrangement of compatible and related uses and thus promote and protect the public health, safety, and general welfare. As a result, nonconforming uses and buildings which adversely affect the development of such areas should be subject to certain limitations. It is the general intent of this chapter that nonconforming uses or nonconforming buildings shall not be enlarged, expanded, extended, or intensified except as provided herein, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same zone. Nothing herein is intended to relax the building code or other applicable city standards. (Ord. 2020 § 7, 1994; Ord. 1186 § 1, 1981)

21.12.200 Nonconforming uses.

Any existing use lawfully established prior to the regulation of this title, which is not permitted in the use zone in which it is located, is hereby declared a nonconforming use and not in violation of this title. (A use which requires a conditional use permit is considered a nonconforming use unless a conditional use permit is obtained.) Such use may be continued so long as it remains otherwise lawful, subject to the following provisions:

A. Enlargement. Such nonconforming use shall not be:

1. Enlarged, extended, increased or intensified;

2. Extended to occupy a greater area than was occupied at the effective date of adoption or amendment of the ordinance codified in this chapter.

Provided, however, that the extension of a nonconforming use throughout any parts of the building it occupies which were manifestly arranged or designed for such use at the time of adoption or amendment of the ordinance codified in this chapter shall not be prohibited; no such use shall be extended to occupy any land outside such buildings.

B. Relocation. No nonconforming use shall be moved in whole or part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of the ordinance codified in this chapter.

C. Alteration or Improvement of Nonconforming Structures and Sites. No existing nonconforming structure or site as described in LMC 21.12.400 occupied by a nonconforming use as defined in this section shall be altered or improvements made to it, except at such time the use is changed to a use permitted in the zone where the structure or site occurs. Such changes of use and improvements may be made if the following provisions are met:

1. If the value of improvements to the structure within 36 consecutive months where a nonconforming-to-conforming change of use is to occur does not exceed 10 percent of the assessed or appraised value of the structure, whichever is greater, then the following shall apply:

a. No increase in floor area or dwelling units is permitted.

b. Interior remodels or exterior alterations such as canopies, terraces, roof overhangs, or covers over walkways that do not increase floor area are permitted. Such exterior alterations which extend into required setback yards shall not project beyond the property line; and in no case shall project more than six feet from the subject structure, or extend toward a public street or more restrictive zone more than 50 percent of the required setback.

c. Height of the existing building may not be further increased beyond the height limitation in the respective zone.

d. One hundred percent of parking requirement shall be provided. Preexisting paved stalls and aisles striped at 90 percent of current dimensional standards may be counted as required parking.

e. All parking including preexisting paved and striped stalls shall meet current landscaping requirements specified in the respective zone.

f. All required site-screening and fencing and refuse and recycling collection areas shall be provided. However, if the available width, due to the location of an existing building, fire lane, service lane, or paved parking, is less than the required width of the site-screening, the applicant shall provide a type of landscaping strip or buffer that is closest to the available width for the type of buffer or strip required in Chapter 21.08 LMC.

g. The proposal shall install landscaping per Chapter 21.08 LMC, and meet street frontage landscaping plans per Chapter 21.06 LMC if they apply.

h. All signs shall conform to the sign regulations of Chapter 21.16 LMC, except those allowed to remain pursuant to state law.

2. If the value of improvements to a nonconforming structure within 36 consecutive months where a nonconforming-to-conforming change of use is to occur is greater than 10 percent of the assessed or appraised value of the structure, whichever is greater, then such improvements shall be subject to the following provisions:

a. In nonresidential and multiple-family zones all improvements, existing structures, accessory buildings, signs, etc., shall conform to all development standards in the respective zone.

b. In single-family zones the principal building containing one dwelling unit may remain at present setbacks, but all improvements and accessory buildings shall conform to all development standards of the zone.

D. Repairs. The following repairs may be made to a structure occupied by a nonconforming use:

1. Repairs to insure safety to a dangerous building declared to be so by the building official providing such repairs do not exceed 50 percent of the assessed value or appraised value, whichever is greater, of the building. When the value of such repairs exceeds 50 percent of the assessed value or the appraised value, whichever is greater, of the building, then the repairs shall be subject to LMC 21.12.550(B).

2. Repairs to the building including, but not limited to placement of interior nonbearing partitions, replacement of windows, siding, doors, wiring, heating facilities, plumbing, and roofing providing the value of such repairs does not exceed 10 percent of the assessed value or appraised value, whichever is greater, of the building.

E. Change of Use. A nonconforming use may only be changed to a permitted use. A change of occupancy shall be deemed an illegal change to a prohibited use if the new use is substantially different than the previous, lawfully established nonconforming use. Such change shall be deemed substantial by application of goals, purposes, and standards of this title, including, but not limited to the following:

1. The parking capacity requirement as specified in Chapter 21.18 LMC is greater.

2. The equipment used on the site is substantially altered.

3. Products or services rendered on the site change substantially.

4. The new use first appears as a permitted use in a less restrictive zone.

5. The new use increases the number of dwelling units on the site.

F. Abandonment. A nonconforming use shall be deemed abandoned when the use of the subject structure and site is unoccupied for a continuous period of six months. Thereafter, the structure and/or site may be occupied only by conforming uses. (Ord. 3326 § 7, 2019; Ord. 2310 § 32, 2000; Ord. 2020 § 7, 1994; Ord. 1770 § 11, 1990; Ord. 1186 § 1, 1981)

21.12.300 Use of nonconforming lots.

Any lot having an area or dimension of less than the current minimum standards of the zone in which it is located may be used for any of the uses permitted in the respective zone subject to all other regulations including minimum yards, providing:

A. The lot size was legally established before the effective date of incorporation of the city of Lynnwood, or annexation by the city of Lynnwood, or before the effective date of a city ordinance, which caused the lot to become nonconforming; and

B. The width and/or dimensions in question are at least 80 percent of the current minimum standards of the respective zone. (Ord. 2020 § 7, 1994; Ord. 1186 § 1, 1981; Ord. 792 § 1, 1975)

21.12.400 Nonconforming structures and/or sites occupied by a conforming use.

This section applies to any lawful structure and/or site occupied by a permitted use existing at the effective date of this title or amendments thereto, which said structure or site would not now be permitted under the regulations of this title for the zone for which building or site is located. Such

structure(s) and/or site is hereby declared a nonconforming structure and/or site and shall not be construed as being in violation of this title, so long as it remains otherwise lawful. “Site,” for purposes of this chapter, means a building site as defined by LMC 21.02.175. For improvements which add no dwelling units or floor area, and the value of which is less than 10 percent of the assessed value or appraised value, whichever is greater, of the building, see LMC 21.12.550(C). All improvements excluding those mentioned in LMC 21.12.550 shall be in accordance with the following provisions.

A. Level 1 Improvements.

1. Scope. This category includes improvements to existing buildings and construction of new buildings within any 36 consecutive months providing:

a. Such improvements do not increase the number of dwelling units on a site; or

b. Such improvements do not increase the total floor area of a building or buildings on a site by more than 15 percent or 2,000 square feet of floor area, whichever is less; or

c. The value of such improvements according to the Lynnwood building official is greater than 10 percent and less than 25 percent of the assessed value or appraised value, whichever is greater, of the building or buildings on the site.

2. Requirements. Level 1 improvements shall be permitted subject to the following provisions:

a. For all multiple-family and nonresidential sites any addition that increases floor area shall not be allowed within the required setback from public streets and from more restrictive zones.

b. For single-family sites, any addition that increases the floor area shall not extend into required yards further than the leading edge of the nonconforming building.

i. In no case shall any addition extend closer than five feet to the property line; and

ii. Along public streets, the addition shall conform to the required setback.

c. Interior remodels or repairs or exterior improvements such as canopies, terraces, roof overhangs or covers over walkways that do not increase the floor area are permitted. Such exterior improvements which extend into required setback yards shall not project beyond the property line; and in no case shall project more than six feet from the subject structure, or extend toward a public street or more restrictive zone more than 50 percent of the required setback.

d. The lot coverage, floor area ratio or height of the existing building and proposed addition may not be further increased beyond the specified lot coverage, floor area ratio or height limitation in the respective zone.

e. At least 90 percent of the current required number of stalls for the site including any additional floor area, shall be provided. Existing stalls and aisles, if paved and striped to at least 90 percent of the current dimensional standards specified in LMC 21.18.700, may be considered as part of the required parking. If the site has fewer than 90 percent of the current required number of stalls, then plans shall provide for installation of sufficient parking equal to at least 90 percent of the current required parking capacity as determined by LMC 21.18.800. All new parking surfaces including previously unpaved parking areas that are being surfaced in connection with a Level 1 alteration as defined herein must be fully landscaped, with curbing or other protection from vehicles and shall conform to current landscape standards for parking areas within the respective zone. The 10-foot street frontage landscape requirement may be reduced to the average width of street frontage landscaping on adjacent private properties. However, in no case may less than five feet be provided on the private property to be developed. Adjacent undeveloped non-single-family-zoned property and adjacent undeveloped or developed single-family-zoned property shall be counted at the full 10 feet for purposes of calculating the average.

f. All required site-screening and fencing shall be provided. However, if the available width, due to the location of an existing building, fire lane, service lane for loading and unloading, or paved parking is less than the required width of the site-screening, the available space must be site-screened by a fence on the property line, and, if possible, within the available area by a hedge or a single row of trees.

B. Level 2 Improvements.

1. Scope. This category includes improvements to existing buildings and construction of new buildings within any 36 consecutive months providing:

a. Such improvements do not increase the number of dwelling units on a site; or

b. Such improvements do not increase the total floor area of a building or buildings on a site by more than 50 percent; or

c. The value of such improvements according to the Lynnwood building official is between 25 percent and 50 percent of the assessed value or appraised value, whichever is greater, of the building or buildings on the site.

2. Requirements. Level 2 improvements shall be permitted subject to the following provisions:

a. For all multiple-family and nonresidential sites, any addition that increases the floor area shall conform to all required setbacks of the respective zone and be structurally independent, i.e., the nonconformity could be removed and the addition could stand on its own and meet all applicable development standards within the respective zone.

b. For single-family sites, any addition that increases the floor area shall not extend into required yards further than the leading edge of the nonconforming building except:

i. In no case shall any addition extend closer than five feet to the property line; and

ii. Along public streets, the addition shall conform to the required setback.

c. Interior and exterior improvements such as canopies, terraces, roof overhangs, or covers over walkways, that do not increase floor area are permitted. Such exterior improvements which extend into required setback yards shall not project more than six feet from the structure; and in no case shall be located any closer to a property boundary than the leading edge of the nonconforming building, or extend toward a public street or more restrictive zone more than 50 percent of the required setback.

d. The lot coverage, floor area ratio (FAR), or height of the existing building and proposed additions may not be further increased beyond the specified lot coverage, floor area ratio, or height limitation in the respective zone.

e. If the site has fewer than 100 percent of the current required number of parking stalls, then plans shall provide for the installation of sufficient parking equal to 100 percent of the current required parking capacity including any additional floor area as determined by LMC 21.18.800; pre-existing stalls, if paved and striped and of aisle and stall width equal to at least 90 percent of the current dimensional standards specified in LMC 21.18.700, may be considered as part of the required parking. All parking surfaces including previously paved and/or unpaved areas shall be fully landscaped and shall conform to current standards for landscaping within parking lots. The 10-foot street frontage landscape requirement may be reduced to the average width of street frontage landscaping on adjacent private properties. However, in no case may less than five feet be provided on the private property to be developed. Adjacent undeveloped non-single-family-zoned property and adjacent undeveloped or developed single-family-zoned property shall be counted at the full 10 feet for purposes of calculating the average.

f. All required site-screening, fencing and refuse and recycling collection areas shall be provided. However, if the available width, due to the location of an existing building, fire lane, service lane for loading and unloading, or paved parking is less than the required width of the site-screening, the available space must be site-screened by a fence on the property line and, if possible, within the available area, by a hedge or a single row of trees.

g. All signs shall conform to the sign regulations of Chapter 21.16 LMC, except those allowed to remain pursuant to state law.

C. Level 3 Improvements.

1. Scope. This category includes improvements to existing buildings and construction of new buildings within any 36 consecutive months providing:

a. Such improvements increase the number of dwelling units on a site; or

b. Such improvements increase the total floor area of a building or buildings on a site by more than 50 percent; or

c. Such improvements have a value according to the Lynnwood building official exceeding 50 percent of the assessed value or appraised value, whichever is greater, of the pre-existing structure or structures on the site.

2. Requirements. Level 3 improvements shall be permitted subject to the following provisions:

a. All improvements, existing structures, accessory buildings, signs, parking facilities, landscaping, site-screening, and storage yards shall conform to required setback and all other development standards for the use within the respective zone and this title. Existing structures in residential zones may remain at present setbacks, but all additions or improvements thereto shall conform to the required setbacks and all other development standards.

b. Compliance with applicable Lynnwood City Design Guidelines, as adopted by reference in LMC 21.25.145(B)(3), for improvements to multiple-family, commercial, industrial and other nonresidential buildings and sites that require project design review (Chapter 21.25 LMC).

D. Alternative Method for Bringing Nonconforming Structures or Sites into Compliance.

1. Petition. As a means of bringing a nonconforming site into general compliance with the intent of the zoning ordinance, an applicant may petition under the conditional use procedures to permit an alternate parking and landscaping plan and such permit, if approved, would specify the time period for compliance. Such petition shall be accompanied by a site plan of the entire site, designating the location and size of existing buildings, parking stalls, and landscaped areas. The applicant shall provide documentation of the uses and their respective parking capacity demands. In addition, the applicant shall submit a proposed landscape and parking plan along with a proposed completion schedule.

2. Decision Criteria. In considering the approval, denial or modification of such alternate plan and compliance schedule, the hearing examiner shall consider all factors relevant to the public interest including, but not limited to, the following:

a. Whether or not the plan will adversely impact surrounding parking facilities or traffic flow or traffic circulation on nearby streets.

b. Whether or not the plan provides a reasonable number of available parking stalls without unreasonably reducing the required landscaping areas within parking lots on the site. Such a plan may propose compact stalls or time-sharing cooperative arrangements as a means of maximizing parking. In time-sharing arrangements, the applicant shall document the off-setting parking demand peaks. Street frontage landscaping shall not be relaxed.

c. The plan shall specify a reasonable amount of time to make the necessary improvements. However, such time shall not exceed two years from the date of approval of such petition.

d. A penalty bond equal to the amount of work to be done in the parking lot or completion of the parking lot requirements may be required prior to finalization of any building permit, occupancy permit or other authority to proceed and shall be released only after the work has been completed.

E. Changes of Occupancy. A legally established nonconforming structure or site occupied by a permitted use(s) may be changed to another permitted use(s) subject to the following:

a. Any change of the occupants or tenants which creates a more nonconforming situation in respect to the number of parking stalls, shall be deemed an illegal change of occupancy unless additional parking is provided in accordance with current standards. For the purpose of this section, only existing parking which is paved and striped with aisle and stall dimensions equal to at least 90 percent of those dimensions specified in LMC 21.18.700 shall be counted. All new parking stalls shall conform to the standards specified in LMC 21.18.700 and be fully landscaped.

b. If a change of occupancy occurs on a site with accessory structures which are located within the required setbacks and which were intended or manifestly arranged or designed for the previous use including, but not limited to service station canopies, such accessory structures shall be removed before occupancy of said site. (Ord. 3140 § 2, 2015; Ord. 2388 § 7, 2001; Ord. 2310 § 33, 2000; Ord. 2020 § 7, 1994; Ord. 1911 § 3, 1992; Ord. 1770 §§ 2 – 10, 1990; Ord. 1618 § 6, 1988; Ord. 1431 § 1, 1984; Ord. 1186 § 1, 1981)

21.12.500 Nonconformance created by government action.

Where a lot, tract, or parcel is occupied by a lawful use or structure, and where the acquisition of a portion of the site for the purpose of public right-of-way by exercise of the power of eminent domain or by purchase by the city creates noncompliance of the use, structure or site regarding any requirement of this code, such use or structure shall be deemed lawful and permitted and subject to regulation as a nonconforming use or structure under this section. (Ord. 3256 § 4, 2017)

21.12.550 Restoration and repairs of nonconforming structures or structures occupied by nonconforming uses.

A. Structures Listed on Historical or Cultural Inventories. Nothing in this section shall prevent the full restoration of a structure which is listed on the National Register of Historic Places, Washington State Register of Historic Places, Washington State Cultural Resource Inventory, or Snohomish County Cultural Resource Inventory.

B. Restoration of Damaged Nonconforming Structures and Structures Occupied by Nonconforming Uses. In the event that a nonconforming structure as defined by this title, or a structure occupied by a nonconforming use as defined by this title, is less than 50 percent destroyed by any cause other than by the action of the owner or applicant, nothing in this chapter shall prevent the securing of a building permit within six months of the date of damage for the restoration of the building or structure. The determination of the amount of damage shall rest with the building official and shall be based upon the ratio of the replacement cost as determined by the building official to the assessed value or the appraised value of the building, whichever is greater, of the building.

In the event that a nonconforming structure as defined by this title, or a structure occupied by a nonconforming use as defined by this title, is destroyed by any cause other than by the action of the owner or applicant, to an extent where restoration costs as determined by the building official would exceed 50 percent of the assessed value or the appraised value of the building, whichever is greater, said structure shall be considered completely destroyed. In the case of a nonconforming structure, said structure may be reconstructed only if it meets all of the regulations of the use zone in which it is located. If the structure was occupied by a nonconforming use, said structure may be reconstructed only if it meets all of the regulations of the use zone in which it is located and only if it is to be occupied by a permitted use(s).

C. Repairs to Nonconforming Structures. On any nonconforming structure occupied by a conforming use, work may be done in any 36 consecutive months on repairs, as follows:

1. For repairs done solely to insure safety to a dangerous building declared to be so by the building official, such repairs shall not exceed 50 percent of value of the building as defined in subsection (B) of this section;

2. For regular repairs, maintenance or improvements to the building including but not limited to placement of interior nonbearing partitions, replacement of windows, siding, doors, wiring, heating facilities, plumbing, roofing, and fixtures to an extent not exceeding 10 percent of the assessed value or appraised value, whichever is greater, of the building;

3. For repairs, maintenance or improvements to the building exceeding 10 percent of the assessed value or appraised value, whichever is greater, of the building, or which add dwelling units or floor area, such repairs shall be made in accordance with LMC 21.12.400.

D. Structures Occupied by Nonconforming Uses. In accord with LMC 21.12.200. (Ord. 2020 § 7, 1994; Ord. 1770 § 1, 1990; Ord. 1186 § 1, 1981)

21.12.900 Construction approved prior to title.

Nothing herein contained shall require a change in plans, construction or designated use of a building or structure for which a building permit has been issued and the construction of which shall have been diligently pursued to the extent that the permit remains in force. (Ord. 2020 § 7, 1994; Ord. 1186 § 1, 1981)